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New Irish abortion law demands referral by objectors

Protection of Life During Pregnancy Act 2013

The Protection of Life During Pregnancy Act 2013 will permit abortions when there is a “real and substantial risk” to the life of a woman by reason of physical illness or suicidal ideation. In the former case, two medical practitioners must certify the risk. In the case of threats to commit suicide, three medical practitioners, including two psychiatrists, must certify the risk. In all cases, they must also certify that the risk can only be averted by abortion. In emergencies, when there is an immediate risk of the mother’s death and the abortion is necessary to save her life, a medical practitioner may provide an abortion without prior certification.

Protection of Conscience Provision

The Act includes a protection of conscience provision that is limited to medical practitioners, midwives and nurses. A provision that denied freedom of conscience to institutions has been dropped. However, no conscientious objection will be allowed in emergencies when the mother’s life is in immediate danger.

One third of Irish psychiatrists signed a letter to the government asserting that abortion is not a treatment for suicidal ideation, so it is not clear how the part of the Act dealing with threats of suicide will function in practice.

The Act demands that medical practitioners who do not want to participate in the procedure must arrange “for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the medical procedure concerned.” Many conscientious objectors are unwilling to refer patients for morally contested procedures because they believe that by doing so they become morally complicit in wrongdoing.

However, it is far from certain how much difficulty the mandatory referral requirement will cause, since the Act envisions abortion only in circumstances involving a substantial risk to the mother’s life. This is very rare, and in such circumstances there is much less likelihood of conscientious objection, so the provision may not prove to be troublesome in practice.

On the other hand, government comments accompanying the earlier “heads of bill” noted that medical practitioners do not need to be of the opinion that the risk to the woman’s life “is inevitable or immediate.” The more broadly this interpretation is construed, the more likely it is that conflicts of conscience will occur, and the greater will be the surrounding controversy.

While the proposed bill is the product of the controversy generated by the death of Savita Halippanavar in Galway in October of last year, it does not appear to propose anything that would have made a difference to the outcome of that case. Her death was caused by a particularly virulent infection that is not normally found in maternity settings. An emergency induction of the kind contemplated the proposed Act was legal at that time and had been decided upon when she spontaneously delivered a stillborn daughter. (See A “medical misadventure” in Ireland: Deaths of Savita and Prasa Halappanavar)